dissenting.
I respectfully dissent.
Although this is a diversity action and is not binding authority beyond this, case, at least as far as Minnesota law is concerned, I nevertheless feel compelled to dissent as to the majority’s choice-of-law analysis.1 I do so because I think it is obvious that both the district court and the majority, have misconstrued the controlling choice-of-law rules under Minnesota law. The majority emphasizes that because the plaintiff is guilty of forum shopping, Nebraska, not Minnesota law should be applied. With all due respect, this line of reasoning makes little sense. The majority’s approach offers a sanction or punishment rather than an analysis as to choice of law under Minnesota’s conflicts methodology-
More importantly, the Minnesota Supreme Court has been quite clear that in tort situations, only the last two items of Professor Leflar’s choice-influencing considerations are relevant. The majority fails to provide a careful analysis of existing Minnesota law. In Schwartz v. Consolidated Freightways Corp., 300 Minn. 487, 221 N.W.2d 665, 668 (1974), cert. denied, 425 U.S. 959, 96 S.Ct. 1740, 48 L.Ed.2d 204 (1976), and Bigelow v. Halloran, 313 N.W.2d 10, 12 (Minn.1981), the Minnesota Supreme Court stated that only the last two items of Professor Leflar’s five-point methodology are relevant to tort cases. These two considerations are “1) advancement of the forum’s governmental interests; and 2) application of the better rule of law.” Bigelow, 313 N.W.2d at 12; Schwartz, 221 N.W.2d at 668.
*742I am not aware that the Schwartz and Bigelow cases have been overruled. In fact, in DeRemer v. Pacific Intermountain Express Co., 353 N.W.2d 694, 697 (1984), the Minnesota Court of Appeals, following the analysis in Schwartz, Bigelow, and Milkovich v. Saari, 203 N.W.2d 408 (Minn.1973), reiterated: “The relevant considerations in tort cases are two: (1) advancement of the forum’s governmental interests; and (2) application of the better rule of law.”
Moreover, the Schwartz court clearly discounted the relevance of forum shopping in Minnesota’s choice-of-law analysis. The court stated:
Defendants argue that plaintiff was forum shopping. Suffice it to say that the courts of this state are open to those residents and nonresidents alike who properly invoke, within constitutional limitations, the jurisdiction of these courts. In the case at bar, plaintiff is a Minnesota resident who is currently suffering from extensive and severe injuries. It would be at least plausible to presume that Minnesota courts would be plaintiffs logical choice. Further, it is noteworthy that plaintiff did not first bring his action in another state and then later bring suit in this state.
221 N.W.2d at 669.
Furthermore, to support its use of forum shopping, the majority quotes Lommen v. City of East Grand Forks, 522 N.W.2d 148, 151 (Minn.Ct.App.1994), out of context. The Lommen court, however, actually followed the principle in Schwartz and concluded that a party’s choice of forum should be irrelevant:
The City asserts that Lommen might have filed suit in Minnesota to avoid North Dakota’s seat belt defense and because North Dakota does not provide for joint and several liability; the City argues that Minnesota law should thus apply simply because Lommen voluntarily chose the Minnesota forum. To the extent Lommen may have been forum shopping, we note that we do not prefer Minnesota law on any substantive issue simply because Minnesota is the forum. See Robert A. Leflar, American Conflicts Law § 90, at 182 (3d ed. 1977) (“Mere forum preference, as such and by itself, is not a valid reason for any choice-of-law result.” (emphasis in original)). Choice of forum ought not determine choice of law.
522 N.W.2d at 151-52 (final emphasis added).
The majority also places reliance upon Jepson v. General Casualty Co., 513 N.W.2d 467 (Minn.1994), in its discussion of forum shopping. Yet the majority fails to recognize that Jepson is not a tort ease but is in fact a ease involving insurance contracts. See id. at 470. In such a case, it is clear that all five of the Leflar considerations become relevant in determining the applicable choice of law. Jepson stated that under certain narrow circumstances, Minnesota does have an interest in preventing forum shopping in contract cases. Id. at 470. As the Jepson Court said, this is true:
where we would be sending a message to those people living on our borders to take advantage of the benefits our neighboring states offer in terms of lower insurance rates, lower vehicle registration fees, and sales taxes, and then, if they are injured, to take advantage of Minnesota’s greater willingness to compensate tort victims. Minnesota does not have an interest in encouraging that conduct.
513 N.W.2d at 471-72. The dangers which Jepson addresses in the context of an insurance contracts suit are simply not present in the current action, which is strictly a tort case.
Similarly, I point out that in Hague v. Allstate Insurance Co., 289 N.W.2d 43 (Minn.1979), aff'd, 449 U.S. 302, 101 S.Ct. 633, 66 L.Ed.2d 521 (1981), in which the court discussed all five choice-of-law factors, it again was analyzing the stacking of insurance contracts. The court makes clear in the Hague case that its analysis of the choice of laws was to examine both tort and contract considerations. Id. at 48. It is significant that the trial court had deemed the advancement of the forum’s governmental interest and the better rule of law the only relevant considerations. Id. It is interesting to note that the court held the trial court was affirmed. Id. at 49. Nonetheless the court analyzed each of these interests because it was not only *743dealing with the question of compensation of a tort victim, but also with the policies and interests underlying stacking insurance contracts. Id. at 48-49.
Thus, I think the majority misstates the conflict of law analysis that exists in Minnesota, and its approach is clearly contrary to the beacon cases of Schwartz, Bigelow, and Milkovich. These cases first make clear that because this is a tort action, the majority should have considered only the advancement of the forum’s governmental interest and the better rule of law. In addition, I think the policy in Minnesota is that which the Schwartz case has previously announced; namely, the Minnesota courts are open to those residents and nonresidents alike who properly invoke their jurisdiction. See 221 N.W.2d at 669. As the court in the Lommen case recently stated, forum shopping is not a valid reason for any choice-of-law result and should not, under the dictates of common sense, determine the choice of law. See 522 N.W.2d at 151-52. With these principles in mind, I turn to the methodology used under Minnesota law to determine the proper law to apply in this case.
In analyzing the advancement of the forum’s governmental interest, we look to both factual contacts and policy considerations. See, e.g., Schwartz, 221 N.W.2d at 668. I respectfully submit that Minnesota has as great as, if not more contacts with plaintiffs lawsuit than Nebraska. The Nesladek family, including Plaintiff Jill Nesladek, trustee for the estate of Jeremy Nesladek, are residents of Minnesota. They have lived here since May of 1992. They pay taxes under Minnesota law. They either rent or own a home in Minnesota. Even if Jill Nesladek and her family moved to Minnesota solely for the purpose of commencing the lawsuit, which they did not, it still remains that she is a legitimate resident of this state, and as the Minnesota courts have made clear, its courts are open to both residents and nonresidents. See Schwartz, 221 N.W.2d at 669.
In addition, Minnesota also has substantial contacts with the alleged wrongdoing; that is, Ford assembled and then placed in the stream of commerce the actual vehicle in question. The allegedly defective vehicle which brought about the wrongful death was sold commercially by Ford in the state of Minnesota. The fortuitous fact that the wrongful death happened to occur in Nebraska or that the plaintiff lived in Nebraska at the time of the occurrence is not of any greater weight than Minnesota’s contacts. At the time the lawsuit was filed, Minnesota’s interest in this litigation is at least as great as, and probably greater than, Nebraska’s.2
Turning to policy considerations, the laws in question — Minnesota’s useful-life statute and Nebraska’s statute of repose — both further the interest of placing some time limit on the bringing of products liability actions. Yet Minnesota clearly has an additional policy interest in deterring Ford from putting a defective product into the stream of commerce within its borders. See, e.g., Mitchell, *744913 F.2d at 250. This interest is better served by Minnesota’s useful-life statute because it is less restrictive and therefore may contribute to greater deterrence than Nebraska’s law. In addition, Minnesota’s general interests in allowing access to its courts for its residents and compensating tort victims tips the balance further in favor of Minnesota’s rule. See, e.g., Bigelow, 313 N.W.2d at 12 (“[T]his court has often said that it is in the interest of this state to see that tort victims are fully compensated.”); Myers v. Government Employees Ins. Co., 225 N.W.2d 238, 243 (Minn.1974) (“Minnesota ... advances its governmental interest by providing access to its courts for its citizens .... ”).
Thus, the advancement of the forum’s government interest, both terms of factual contacts and policy considerations, weighs in favor of applying Minnesota law. Even assuming, arguendo, that this factor points equally to Minnesota and Nebraska, Minnesota’s useful-life statute is the better rule of law under the circumstances existing in this particular case. The imposition of a repose period in this factual context would not serve a worthwhile purpose. A statute of repose is based on the idea that a defect does not really exist if the product has been in use for longer than the repose period. Yet here, at least according to the plaintiff’s allegations, Ford has known for many years of this defect and failed to recall the vehicle or properly warn of its dangers. To now allow Ford to escape the possibility of liability merely because the repose period has passed, even though Ford may have known of the existence of the defect long before the statute’s running, serves no purpose but to arbitrarily punish the plaintiff. Thus, Nebraska’s inflexible statute of repose is not well suited for these circumstances.
Rather, because this case involves a known defective product, the equities favor allowing the plaintiff to bring the cause of action and then letting a jury decide whether the product has run the course of its useful life. I contend, therefore, that Minnesota’s law should be applied under Minnesota’s choice-of-law methodology.
For the foregoing reasons, I respectfully dissent.
. I do not quarrel with the majority’s ultimate finding that Nebraska's statute of repose is substantive law. However, I do think the question is much closer than the majority acknowledges. I believe it is significant that the statute of repose appears under the civil procedure section of Nebraska's code. See Neb.Rev.Stat. § 25-224. I also feel the majority misses the emphasis of the court's colloquy at oral argument relating to the equitable tolling of the statute of repose for reasons of infancy or incapacity. Lawson v. Ford Motor Co., 225 Neb. 725, 408 N.W.2d 256, 258 (1987), and Macku v. Drackett Products Co., 216 Neb. 176, 343 N.W.2d 58, 61 (1984), simply illustrate that the statute of repose has or could have been tolled in the past on the basis of infancy or incapacity, and that this fact generally demonstrates that it is a procedural provision. Lawson and Macku hold that Nebraska's tolling provision for infancy and incapacity tolls Neb. Rev.Stat. § 25-224(4), rather than section 25-224(2), which is at issue in this case. Yet because section 224(4) extended section 224(2) by two years after the latter statute's enactment, it functionally served as a statute of repose for actions existing at that time. Lawson demonstrated that this repose period could indeed be tolled:
Section 25-224(4) provides that notwithstanding the 10-year ban imposed by § 25-224(2), “any cause of action or claim which any person may have on July 22, 1978, may be brought not later than two years following such date.”
The foregoing 2-year period of limitations, however, is extended by [Nebraska’s tolling provision].
408 N.W.2d at 258.
The fact that tolling provisions are not at issue in this case is not material. The point is that substantive law and substantive rights cannot be tolled as has been done with Nebraska’s statute of repose. However, I leave this to the Nebraska Supreme Court to more definitively resolve in the event that they need to do so, and simply recognize that our opinion is only controlling in this case. Thus, I do not necessarily agree with the analysis made by the majority opinion on the substantive aspect of the statute of repose, but I assume that it is a substantive provision for purposes of this dissent.
. Courts frequently apply the law of the jurisdiction where an allegedly defective product was assembled or placed into the stream of commerce, or where the plaintiff is domiciled, rather than the law of the state where the accident or injury occurred. See, e.g., Mitchell v. Lone Star Ammunition, Inc., 913 F.2d 242, 250 (5th Cir.1990) (holding Texas’s substantive law should apply rather than the law of the state where the accident occurred, because Texas has a particularly strong interest "when the defective product in question was manufactured and placed in the stream of commerce” in Texas); In re Air Crash Disaster, 769 F.2d 115, 120 n. 7 (3d Cir.1985) (choosing to apply Pennsylvania law because that state has the greatest interest in governing the manufacture of products within its borders, although the helicopter crash at issue happened elsewhere), cert. denied, 474 U.S. 1082, 106 S.Ct. 851, 88 L.Ed.2d 891 (1986); Turcotte v. Ford Motor Co., 494 F.2d 173, 177-78 (1st Cir.1974) (concluding Rhode Island, the plaintiff's domicile, had a stronger governmental interest in the suit than Massachusetts, the state where the automobile accident occurred, because Rhode Island has a strong interest in compensating its residents for torts resulting in severe injuries or deaths); Lewis-DeBoer v. Mooney Aircraft Corp., 728 F.Supp. 642, 645 (D.Colo.1990) (finding fact that the defendant made and sold allegedly defective airplane door latch in Texas, outweighed fact that plaintiffs were from Colorado and plane crash occurred there); Kozoway v. Massey-Ferguson, Inc., 722 F.Supp. 641, 643 (D.Colo.1989) (determining Iowa law rather than law of Alberta, Canada should apply because defective hay baler was manufactured in Iowa, while fact that plaintiff was injured on his farm in Canada was merely fortuitous).